Local 825, International Union Of Operating Engineers, Afl-Cio (Building Contractors Association Of New Jersey)

188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 825, International Union of Operating Engi- neers, AFL-CIO (Building Contractors Associa- tion of New Jersey) and Domenic Tarantino. Cases 22-CB-5324 and 22-CB-5509 10 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 10 March 1987 Administrative Law Judge Julius Cohn issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local 825, International Union of Operating Engineers, AFL- CIO, Little Falls, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order. The Respondent's exception that Raymond Polgar did not chair the 14 April 1986 district meeting of Local 825 has merit. The uncontrovert- ed testimony is that Thomas Rowe chaired the meeting. The judge's in- advertent error does not affect the outcome of the case. In sec. 111,13, of his decision, the judge found that the Respondent vio- lated Sec. 8(a)(1)(A) of the Act. We note that the correct citation to the Act is Sec. 8(b)(I)(A). Thomas R. Gibbons, Esq., of Newark, New Jersey, for the General Counsel. David Solomon, Esq. (Schneider, Cohen, & Solomon), of Jersey City, New Jersey, for the Respondent. Domenic Tarantino, pro se. DECISION STATEMENT OF THE CASE Julius COHN, Administrative Law Judge. This case was tried in Newark, New Jersey, on 30 June 1986. On charges filed in Cases 22-CB-5324 and 22-CB-5509 on 25 June 1985 and 30 May 1986, respectively, the Region- al Director for Region 22 issued an order consolidating cases and a second amended complaint on 18 June 1986.1 " A prior complaint that had consolidated Cases 22-CB-5324 and 22- CB-4833 (filed by another charging party) had been issued Thereafter, an order severing Case 22-CB-4833 was issued and that case was dis- missed, the charge therein having been withdrawn by the other charging party. Tarantino's second charge, Case 22-CB-5509, was then consolidat- ed with Case-22-CB-5324 The second amended complaint alleged violations by Local 825, International Union of Operating Engineers, AFL-CIO (Respondent or Local 825) of Section 8(b)(1)(A) of the Act. It is contended that Respondent unlawfully refused to permit Tarantino to examine the hiring hall records and lists of applicants for referral during a certain period of time and, in addition, that Re- spondent further refused to permit him to examine the records because he had filed unfair labor practice charges under the Act. Respondent filed an answer to this second amended complaint denying the commission of unfair labor prac- tices. All parties were given an opportunity to participate, produce relevant evidence, to examine and cross-examine witnesses, to file briefs, and to argue orally. Briefs sub- mitted by the General Counsel and Respondent have been carefully considered. On the entire record, including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Building Contractors Association of New Jersey (BCA), a New Jersey corporation with a principal office and place of business in Woodridge, New Jersey, is an association of employers engaged as contractors in the building and construction industry in the State of New Jersey and other States. During the preceding 12 months, employer-members of BCA purchased construc- tion materials valued at more than $50,000, which were delivered to jobsites in New Jersey, of which materials valued in excess of $50,000 were transferred to the job- sites directly from States other than the State of New Jersey. The complaint alleges, Respondent admits, and I find that BCA is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Local 825 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent has had a series of collective-bargaining agreements with BCA including the current one that in- volves a unit of construction equipment employees em- ployed by members of the Association. The current agreement provides for an exclusive hiring hall under which Local 825 refers operators of construction equip- ment to the employer-members of the Association. Dominic Tarantino has been a member of Local 825 for approximately 35 years and, of course, obtains em- ployment through its hiring hall procedures. In addition, Tarantino has been an active member, including running for union office. Moreover he has been a frequent filer of unfair labor practice charges against Local 825 with the National Labor Relations Board, including some which 284 NLRB No. 24 OPERATING ENGINEERS LOCAL 825 (BUILDING CONTRACTORS) 189 have been litigated before the Board. During the early part of 1985, Tarantino, when out of work, would tele- phone to place his name on the list for referral. At the same time he would ask for an opportunity to examine the list, and was informed that this could be done only with permission of the business manager. He was unsuc- cessful until one time when he was told that he could look at his name only on the list and no others. As a result of unfair labor practice charges filed in 1985 by Tarantino and another individual, arrangements were made so that Tarantino and others were permitted to view their own name as well as those of the individuals immediately ahead and after on the list. Still later, this procedure was changed so that members would be able to see the entire list, provided an appointment was made to do so. In addition they would be allowed to copy in- formation from the hiring hall list. Thereafter, in January 1986, Tarantino received an opportunity to view the list under the new conditions and did so at intervals during 1986, when convenient to both Local 825 and himself. These facts, as stated above, are uncontradieted on this record. Tarantino attended a meeting of one of the Districts of Local 825 on 14 April 1986. The meeting was chaired by Raymond Polgar, then office manager and recording sec- retary of Respondent. There were over 100 members in attendance at this meeting. Tarantino spoke at the meet- ing, complaining about the procedures used in running the hiring hall and the maintenance of the worklist. He specifically referred to two names and asked for informa- tion about how they got on the list. According to Taran- tino, Polgar replied, "You're not going to get it. You can go to the Labor Board, file another charge." While Po'gar denied telling it the way Tarantino de- scribed, he did testify that he told Tarantino, "If you're really not satisfied, file another charge. Do whatever you have to do. We have nothing to hide from you or any other member." B. Analysis It is uncontroverted that during 1985, the period en- compassed by the charges, Tarantino was denied access by Local 825 to the referral lists and the information contained therein. The Board has clearly held that "A union has an obligation to deal fairly with an employee's request for job referral information and that an employee is entitled to access to job referral lists to determine his relative position in order to protect his referral rights." Teamsters Local 282 (AGC of New York), 280 NLRB 733, 735 (1986); Operating Engineers Local 324 (AGC of Michi- gan), 226 NLRB 587 (1976). Moreover it has been held that "A union breaches its duty of fair representation in violaton of Section 8(b)(1)(A) of the NLRA when it ar- bitrarily denies a member's request for job referral infor- mation, when that request is reasonably directed towards ascertaining whether the member has been fairly treated with respect to obtaining job referrals." See NLRB v. Carpenters Local 608, 811 F.2d 149, 152 (2d Cir. 1987), enfg. 279 NLRB 747 (1986). In this context I find that by its refusal to provide meaningful access by members to the hiring hall list for referral during 1985, Respondent violated Section 8(a)(1)(A) of the Act. Indeed Respond- ent's main contention in this regard is that an adjustment had been reached with respect to the charge and com- plaint severed from this case, as noted above, by which Respondent had agreed to furnish access and the infor- mation as requested. The instant case, however, remains vital and accordingly must be decided. The complaint further alleges that Respondent violat- ed Section 8(b)(1)(A) of the Act, by failing and refusing to respond to requests for information from Tarantino because he filed unfair labor practices and gave testimo- ny under the Act. This allegation, of course, refers to the remarks made by Polgar at the District meeting of 14 April. I am inclined to credit Tarantino's version of this incident as a result of the lengthy background of his ac- tivities. But assuming Polgar's version that he told Tar- antino to file another charge if he was not satisfied, I find such statement contains an implied threat that the Respondent's actions concerning the requests for referral records were, in Tarantino's case, based on his prior filing of charges. In the context of Tarantino having ac- tually filed many charges before the Board, his constant complaints with respect to the operation of the hall, the mere mention by Polgar of filing of charges, gives rise to the conclusion that retaliation by Local 825 occurs fol- lowing such action by Tarantino. Accordingly, I fmd that Respondent further violated Section 8(bX1)(A) of the Act. See Longshoremen Local 1329 (Metals Processing Corp.), 252 NLRB 229 (1980). THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The prayer for relief in the complaint requests, and General Counsel's brief argues, that the remedy should include authorization for discovery proceedings pursuant to the Federal Rules of Civil Procedure in order to secure compliance with any order of the Board. The General Counsel does not contend that there are any special circumstances here present necessitating depar- ture from the traditional remedy in similar cases and I will not include that requested remedy here. Northwind Maintenance Co., 281 NLRB 317 (1986); 0. L. Willis, Inc., 278 NLRB 203 (1986). On the basis of the above findings of fact and on the entire record of this case, I make the following CONCLUSIONS OF LAW 1. Building Contractors Association of New Jersey is an association of employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 825, International Union of Operating Engi- neers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By arbitrarily refusing to honor requests for infor- mation made by employees who have a reasonable need therefor, Respondent violated Section 8(b)(1)(A) of the Act. 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. By threatening its members with reprisals because they tiled charges and/or gave testimony at the National Labor Relations Board, Respondent violated Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended2 ORDER The Respondent, Local 825, International Union of Operating Engineers, AFL-CIO, Little Falls, New Jersey, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing arbitrarily to honor requests for informa- tion, concerning the referral list maintained by the Union, made by employees who have a reasonable need therefor. (b) Threatening or coercing employees in their access to the National Labor Relations Board and threatening them with reprisals because of their having filed charges and given testimony at the Board. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at Respondent's office and place of business copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Re- spondent's authorized representative, shall ,be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT arbitrarily refuse to honor requests for information made by employees who have a reasonable need therefor, pertaining to the referral of members to positions with employers. WE WILL NOT threaten or coerce employees in their access to the National Labor Relations Board by threat- ening them with reprisals because of their having filed charges and given testimony at the Board. LOCAL 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO